TMI Blog2006 (7) TMI 89X X X X Extracts X X X X X X X X Extracts X X X X ..... No. E/957/2005 - Final Order No. 1274/2006, - Dated:- 28-7-2006 - [Order per : S.L. Peeran, Member (J) (Oral)]. - This Revenue appeal arises from Order-in-Appeal No. 11/2005, dated 24-6-2005 upholding the Order- in-Original No. 4/2003-C.E., dated 24-7-2003 wherein the Asst. Commissioner has held that the assessments were provisional and after the finalization, the assessee was entitled for refu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt would not apply in cases where the assessments were provisional in terms of the Apex Court judgment rendered in the case of Mafatlal Industries Ltd. v. UOI- 1997 (89) E.L.T. 247 (S.C.) and CCE, Mumbai-II v. Allied Photographics (India) Ltd. - 2004 (166) E.L.T. 3 (S.C.). The Revenue is aggrieved with this order and contends that the provisions of unjust enrichment would apply even in similar cir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld not be attracted. The para 3 of the findings recorded in the case of M/s. Ampro Industries Pvt. Ltd. is reproduced herein below: 3. On a careful consideration of the submissions made by both the sides, we notice that it is clear from the impugned order that the refund arose as a result of finalization of provisional assessment. It is very clear from the facts of the case that no part of duty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not correct order and the same is set aside. The appeals are al lowed with consequential relief. He submits that the issue is foreclosed in assessee's favour and hence, the appeal should be rejected. 4. On a careful consideration, we notice that the Tribunal by Final Order Nos. 1130-1131/2002, dated 22-8-2002 had remanded the matter for de novo to the Asst. Commissioner to examine the issue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessments were provisional. The present period is prior to the amendment brought to Rule 9B of C.E. Rules. The Tribunal in the case of M/s. Ampro Industries (supra) has applied the ratio of the Apex Court judgment in a similar circumstance and has allowed the appeal of the assessee. We do not find any merit in this appeal and the same is rejected. (Pronounced and dictated in open Court) - ..... X X X X Extracts X X X X X X X X Extracts X X X X
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